Labour and European Law Review

Thompsons’ Labour and European Law Review (LELR) is recognised as an authoritative source of comment and discussion of rulings which fall under both UK and European law. Available to read here, and also via a weekly email bulletin, LELR offers considerable insight into the latest issues affecting trade unions and their members.

Agency workers

The law defines an agency worker as someone who works “temporarily” for a hirer. In Brooknight Guarding Ltd v Matei, the Employment Appeal Tribunal held that an individual on a zero-hours contract can also be an agency worker if their position can be shown to be temporary (…).

The law states that agency workers are entitled to the same basic working conditions as employees after 12 weeks’ employment in the same job. In Kocur v Angard Staffing Solutions Ltd and Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) held that agency workers cannot be compensated for less holiday and/or a lower rate of pay for rest breaks with an enhanced hourly rate. (…).

Blacklisting

Courts will only imply a contract on the ground of necessity in certain circumstances. In Smith v Carillion the Court of Appeal held that, even in the case of a blacklisted worker, the question for courts was whether it was necessary to imply a contract between the worker in question and the end user by looking at how the parties conducted themselves.

Following complaints by the GMB and human rights group Liberty about the failure to act against firms found to have been blacklisting trade unionists, the deputy Information Commissioner has said that there is nothing more his office can do.

Breach of contact

Employees who have affirmed a breach of contact can resign and claim constructive dismissal if there is a subsequent breach. In Brown and anor v Neon Management Services Ltd and anor, the High Court held that employees who were working out their notice could still claim constructive dismissal after their employer committed further breaches during the notice period (…).

A claim for constructive dismissal can arise where an employee resigns in response to a series of acts which when taken together amount to a fundamental breach of contract - so called “last straw” cases. In Kaur v Leeds Teaching Hospitals NHS Trust, the Court of Appeal clarified that where an employee has affirmed earlier breaches, their right to claim constructive dismissal is “revived” if they resign in response to a further breach (…).

The law says that tribunals can only hear breach of contract claims on termination of employment. In Agarwal v Cardiff University and anor, the Employment Appeal Tribunal (EAT) held that tribunals cannot therefore hear unlawful deduction of wages claims if they depend on construction of the claimant’s contract.

Capability

In the current climate of austerity and mass redundancies in both the public and private sectors, employers will often look for reasons other than redundancy to dismiss employees to avoid paying a redundancy payment.

Compensation

In terms of assessing compensation for injury to feelings, courts have long followed the guidance provided by the “Vento bands”, which was updated in 2017. In Durrant v Chief Constable of Avon & Somerset Constabulary, the Court of Appeal held that the revised amounts can be used in cases prior to the update in circumstances where it is justified to do so.

Conciliation and settlement

Before lodging a tribunal claim, complainants usually have to engage in early conciliation through Acas. In Luton Borough Council v Haque the Employment Appeal Tribunal (EAT) held that sections 207B(3) and 207B(4) of the Employment Rights Act (ERA) which extend the time for bringing proceedings have to be read in sequence rather than as alternatives (…).

Before starting tribunal proceedings, claimants have to submit separate early conciliation (EC) forms to Acas for each employer against whom they want to submit a claim. In De Mota v ADR Network and The Co-operative Group Ltd, the Employment Appeal Tribunal (EAT) held that even if the claimant fails to submit separate forms, that does not mean the EC certificate issued by Acas is invalid.

Contract of employment

Although it is not always easy for courts to know when to infer acceptance by an employee of a change to their terms and conditions, the Court of Appeal held in Abrahall and ors v Nottingham City Council and anor that if there is a reasonable alternative explanation for why the employees continued to work, then they cannot be deemed to have accepted the new terms (…).

Although an employment contract has to state the length of notice of termination, it does not have to state how notice should be given. In Newcastle upon Tyne NHS Foundation Trust v Haywood, the Supreme Court held that, as employers and employees need to know whether and when employment had come to an end, receipt of notice does not take effect until the employee has read it or had a reasonable opportunity of doing so (…).

Although views might differ generally as to whether suspension of an employee is a neutral act, the High Court confirmed in Agoreyo v London Borough of Lambeth that, as far as the courts are concerned, it is not neutral. In the circumstances of this case, it amounted to a breach of the implied term of mutual trust and confidence.

Deductions from wages

The law says that tribunals can only hear breach of contract claims on termination of employment. In the conjoined case of Agarwal v Cardiff University and Nexus v Anderson and ors, the Court of Appeal held that tribunals can hear unlawful deduction of wages claims, even if they involve construction of the claimant’s contract of employment.

The Employment Rights Act 1996 stipulates that claims for unauthorised deductions from wages have to be brought within three months of the last deduction. In Coletta v Bath Hill Court (Bournemouth) Property Management Ltd, the Employment Appeal Tribunal (EAT) held that for claims brought before January 2015, there was no limitation on arrears as long as the claim was brought within the time limit (…).

Although tribunal judges are not supposed to interpret contractual clauses, the Employment Appeal Tribunal (EAT) held in Tyne and Wear Passenger Transport Executive t/a Nexus v Anderson and ors that they can do so in relation to claims for unlawful deductions from wages under PART 11 of the Employment Rights Act (ERA). Thompsons was instructed by the RMT to represent its members (…).

Definition of a worker

Although the contract documentation between the company and its drivers stated that there was no obligation on the driver to provide services nor on the company to offer them , the Employment Appeal Tribunal held in Addison Lee Ltd v Lange and ors that the drivers were workers because the contract did not reflect the reality of the situation and they were clearly “undertaking to perform driving services personally” when they logged on to the employers system (...).

In order to bring certain tribunal claims, claimants have to show they are workers as opposed to self-employed contractors. In Pimlico Plumbers Ltd and anor v Smith, the Supreme Court held that a plumber who was ostensibly self-employed was a worker because of the degree of control that the company exercised over him (…).

When deciding whether drivers were workers in Uber BV v Aslam and ors, the Employment Appeal Tribunal (EAT) held that, although the relationship between the parties was presented in the written documentation as being one of agency, the tribunal was right to focus on what happened in reality between them.

Disciplinary and dismissal

Although employers are usually expected to follow a fair process (including holding a meeting with the employee) before dismissing them, the Employment Appeal Tribunal (EAT) held in Hawkes v Ausin Group (UK) Ltd that it is not necessarily unfair not to hold a meeting with an employee before dismissing them for some other substantial reason (...).

The law states that a dismissal can be fair if it is for a reason which “relates to the conduct of the employee”. In Quintiles Commercial UK Ltd v Barongo, the Employment Appeal Tribunal held that, as there is no legal requirement for the dismissal to amount to “gross misconduct”, the dismissal could still be fair if the misconduct was only deemed to be “serious” (…).

The law states that evidence of pre-termination negotiations cannot be used in any subsequent tribunal proceedings except in limited, specified, circumstances. In Basra v BJSS Ltd, the Employment Appeal Tribunal (EAT) held that if the effective date of termination is disputed, tribunals first have to establish the date before considering what evidence can be included or excluded (…).

Although an employer owes a duty of care to their employees, the Supreme Court has held in James-Bowen and ors v Commissioner of Police of the Metropolis that a police commissioner does not owe a duty of care to protect the reputation of her officers when involved in litigation with a third party who has alleged that those officers assaulted him (…).

Employment tribunals and tribunal fees

If a claim is lodged out of time because of a failure by the claimant’s solicitor, then usually it will be rejected because of their unreasonable conduct. In North East London NHS Foundation Trust v Zhou, the Employment Appeal Tribunal held that it might not be unreasonable conduct if the claimant instructed the solicitors that she would fill in the application form but failed to do so correctly (...).

Although the law says that claimants have to present their complaints to a tribunal within three months, the process of early conciliation extends the time limit by at least a month. In Miah v Axis Security Services Ltd, the Employment Appeal Tribunal held that the time limit for presenting a statutory claim, such as unfair dismissal, could not be extended by rules governing tribunal practice (…).

The law states that, once the principle of equal pay for equal work has been established, an equality clause has to be read into the woman’s contract. In Reading Borough Council v James, the Employment Appeal Tribunal held that, once that statutory modification has occurred, the right to equal pay continues even if the comparator is promoted to a different job (…).

Although calling someone a “fat, ginger pikey” might seem, at first sight, to constitute harassment, the Employment Appeal Tribunal (EAT) held in Evans v Xactly Corporation Ltd that, as these complaints are highly fact sensitive and context specific, the tribunal was entitled to conclude that it was not in this case (...)

European Law

The Supreme Court has held in P v Commissioner of Police of the Metropolis that police officers must have the right to bring claims of treatment contrary to EU law to a tribunal in order to comply with the principles of effectiveness and equivalence. Likewise, national rules in relation to judicial immunity have to be consistent with EU law.

The Court of Justice of the European Union (CJEU) has decided in Nogueira and ors v Crewlink Ireland Ltd and Osacar v Ryanair Designated Activity Company (formerly Ryanair Ltd) that, in order to decide where a cabin crew member habitually carries out their work, a number of different factors have to be considered, not just the place that has been designated as their “home base”.

Fixed-term, flexible and part-time workers

The law says that part-time workers cannot be treated less favourably than full-timers. In British Airways v Pinaud, the Court of Appeal held that it was clearly less favourable treatment for an employer to require a part-timer to work more than half of the hours of a full-timer but only pay them half of the salary (...).

The law states that a part-time worker cannot be treated less favourably than someone who works full time if they are employed under the “same type of contract”. In Roddis v Sheffield Hallam University, the Employment Appeal Tribunal (EAT) held that contracts should be defined broadly so that a part-time worker on a zero hours contract can be compared to a full-time worker on a permanent contract. Thompsons was instructed by UCU to act on behalf of their member in the EAT appeal (…).

The Employment Appeal Tribunal (EAT) has held in Royal Surrey County NHS Foundation Trust v Drzymala that it is not automatically fair to dismiss an employee when their fixed-term contract expires, just because the employer complied with the Fixed-Term Employees Regulations (…).

Freedom of information and data protection

For an employer to be held vicariously liable for the actions of their employees, there has to be sufficient connection between their job and the wrongful conduct. In Wm Morrison Supermarket plc v Various Claimants, the Court of Appeal held that there was no exception to the rule of vicarious liability where the employee’s motive was to cause financial or reputational damage to the employer by causing harm to a third party (...)

The law says that if a contract is terminated by notice, then the effective date of termination (EDT) is the date on which the notice expires but if no notice is given, then it is the date on which the termination takes effect. In Cosmeceuticals Ltd v Parkin, the Employment Appeal Tribunal (EAT) held that in a summary dismissal that is communicated to the claimant straight away, the effective date of termination is immediate (…).

Human rights

The European Convention on Human Rights and the UN Guiding Principles on Business and Human Rights place duties on the State to protect against human rights abuses by businesses and provide access to remedy for victims.

The UK has ratified a landmark ILO agreement to combat forced labour, people trafficking and other forms of modern slavery. Along with Niger and Norway, it is one of the first nations to sign the international convention.

Industrial Action

According to figures produced by the Office for National Statistics (ONS), the number of stoppages last year in the UK were the lowest since records began in 1891. The number of workers involved in labour disputes was also the lowest ever recorded. (…).

Information and consultation

The Information and Consultation of Employees Regulations (ICE) require “undertakings” which carry out “an economic activity” to inform and consult with their employees about a wide range of issues. In Advisory, Conciliation and Arbitration Service (ACAS) v Public and Commercial Services Union (PCS), the Employment Appeal Tribunal (EAT) held that ACAS fell within the category of an undertaking that carried out an economic activity, rendering it subject to the regulations. Thompsons was instructed by PCS to act on behalf of their members (…).

The law says that when an employer proposes to dismiss as redundant 20 or more employees at one “establishment”, they have to consult with the appropriate representatives. In Seahorse Maritime Ltd v Nautilus International, the Employment Appeal Tribunal (EAT) held that the territorial scope of the obligation to collectively consult was dependent on the individual employee’s connection to the UK.

Maternity/Parental rights

The Court of Justice of the European Union held in Tribunalul Botoşani and anor v Dicu that member states are not prevented from legislating that holiday does not accrued during parental leave despite a worker retaining their worker status.

The appeal tribunal has recently heard two cases concerning men who brought sex discrimination claims because they received statutory pay when on Shared Parental Leave (SPL) compared to women who received enhanced pay when on maternity leave (…).

The National Minimum Wage (NMW) regulations state that workers are entitled to be paid the NMW for the actual hours they work. In the conjoined cases of The Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand, the Court of Appeal clarified that workers who are required to sleep at or near the place of work, and are provided with suitable facilities for sleeping, are not entitled to the NMW while they are asleep (…).

Pensions

The Supreme Court has held In the matter of an application for judicial review by Denise Brewster that the requirement for a cohabiting partner to be nominated by a scheme member in order to be eligible for a survivor’s pension cannot be objectively justified.

The Court of Justice of the European Union (CJEU) has held in Parris v Trinity College Dublin that it was not discrimination on the grounds of sexual orientation and/or age for a pension fund to refuse a retrospective claim for a survivor’s pension to the surviving spouse or civil partner.

Up until 2014 when same-sex marriage became legal, anyone with a full certificate of gender recognition was entitled to a state pension according to the rules relating to their acquired gender, unless they were married. In MB v Secretary of State for Work and Pensions, the Supreme Court asked the Court of Justice of the European Union whether EU law precludes national law from requiring a transgender person to be unmarried to qualify for a state pension.

Personal Injury

Although employers can be held vicariously liable for their employees’ conduct, it has to be closely connected with the acts that the employee was authorised to do. In Bellman v Northampton Recruitment Ltd, the Court of Appeal held that that an assault committed at a drinks event following a company party could be said to have been carried out in the course of the employee’s employment (...).

The law states that the first £30,000 of any payment made on termination of employment is exempt from tax, but what about payments made for injury to feelings? In Moorthy v HM Revenue and Customs (HMRC), the Court of Appeal held that payments for injury to feelings in the context of an age discrimination claim were exempt from tax but that any awards should be modest (…).

The law says that employers are liable for any harm that results from discrimination caused at work. The Court of Appeal has held in BAE Systems (Operations) Ltd v Konczak that the job of the tribunal is to identify the harm caused by that discrimination and (broadly) the part of the suffering that results from it.

Recognition

The Employment Appeal Tribunal (EAT) has held in Kostal UK Ltd v Dunkley and ors that employers cannot go over the heads of unions recognised for collective bargaining purposes and make offers directly to the workforce, if the purpose and effect is so that the workers’ terms will not be determined by collective agreement negotiated by the union.Thompsons was instructed by Unite the Union’s Strategic Case Unit to act on behalf of its members. (…).

When considering an application for union recognition in Independent Workers’ Union of Great Britain v RooFoods Limited T/A Deliveroo, the Central Arbitration Committee (CAC) held that, as the drivers had a genuine right to substitute which operated in practice, they could not be workers under section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Redundancy and Protective Awards

In Bichat and ors v Aviation Passage Service Berlin, the Court of Justice of the European Union (CJEU) held that the collective redundancies directive applies to all undertakings that exercise a “decisive influence” in an employer’s decision-making bodies. As a result, the undertaking can compel that employer to contemplate or plan for collective redundancies.

The Employment Appeal Tribunal (EAT) has held in Mirab v Mentor Graphics (UK) Ltd that, in a redundancy situation, the onus is not necessarily on the employee to raise the possibility of “bumping” someone else out of their job to save them from redundancy. Instead it is for the tribunal to determine whether, on the particular facts of the case, what the employer did fell within the range of reasonable responses (…).

The Employment Appeal Tribunal (EAT) has held in Keeping Kids Company (In Compulsory Liquidation) v Smith and Others that events which occur after a proposal to make more than 20 employees redundant cannot be used as a defence for failing to consult under section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). However, it might make a difference to the size of the award. Thompsons were instructed by Unite the Union to represent its member (…).

Although employees have a right to use social media, the Employment Appeal Tribunal (EAT) held in Game Retail Ltd v Laws that it has to be balanced with their employers’ need to minimise any risk to their reputation from communications that could be read by customers and other employees.

The growing use of social media has inevitably raised questions about whether employees who post their political or religious views on their Facebook page can be found to have brought their employer into disrepute.

Trade union information

Although communication between a lawyer and their client is covered by legal professional privilege (and therefore does not have to be disclosed to a court), the same principle does not apply between a member and their union. However, in Dhanda v TSB Bank, the Employment Appeal Tribunal (EAT) held that although this communication is not privileged, it is still confidential and should only be disclosed when necessary to fairly dispose of the proceedings (…).

The theme of this year’s Workers’ Memorial Day, which takes place on 28 April, is “Strong Laws, Strong Enforcement and Strong Unions”. The purpose behind the annual event is to raise awareness of the number of workers who lose their lives every year as a result of their work by “remembering the dead and fighting for the living”. In other words, to remember all those killed through work, while at the same time ensuring that such tragedies are not repeated.

Transfers of Undertakings

The Employment Appeal Tribunal has held in Nicholls and ors v London Borough of Croydon that if a public health commission team was an “economic entity” under the Transfer of Undertakings (Protection of Employment) Regulations 2006, the tribunal needed to explain why it did not constitute a relevant transfer under the regulations (...).

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, employers cannot vary a contract if the reason for the variation is the transfer. In Tabberer and ors v Mears Ltd and ors, the Employment Appeal Tribunal held that employers can, however, vary a contract if the relevant contractual term is outdated and unfair (...)

Under the European directive, there is a transfer of an undertaking when there is a transfer of an “economic entity which retains its identity”. In Sigüenza v Ayuntamineto de Valladolid and ors, the Court of Justice of the European Union held that a temporary suspension of the activities of an undertaking between an employee being dismissed and the appointment of another contractor did not mean there had not been a transfer (…).

A group of equality organisations and human rights experts, including the Equality and Human Rights Commission (EHRC), has warned the government that the EU (Withdrawal) Bill will not protect workers’ rights.

Although half of UK employees who did overtime last year received a premium of 10 per cent or more, 14 per cent reported that they were not paid any overtime at all in their main job, according to a report by the Resolution Foundation.

Unfair dismissal

In cases of misconduct, employers have to have reasonable grounds for believing that their employee was guilty of misconduct and have to carry out a reasonable investigation. In Hargreaves v Governing Body of Manchester Grammar School, the Employment Appeal Tribunal held that it was not unfair for the school to withhold witness statements from the claimant and the disciplinary panel which dismissed him (...).

The law states that employees are entitled to be accompanied to a disciplinary hearing and to bring claims for unfair dismissal. In Talon Engineering Ltd v Smith, the Employment Appeal Tribunal held that an employee was unfairly dismissed when the employer refused to postpone a disciplinary hearing by ten days even though this was not a breach of the right to be accompanied (...).

Although handing in a letter offering a month’s notice can usually be interpreted as an act of resignation, the Employment Appeal Tribunal held in East Kent Hospitals University NHS Foundation Trust v Levy that if the wording is ambiguous, tribunals have to adopt an objective test to decide how the letter would have been interpreted by the “reasonable recipient” (...).

Vulnerable and migrant workers

Under UK immigration law employers may be liable to pay a penalty if they employ someone who they know is not allowed to work in the UK. In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal (EAT) held that even if an employer genuinely believes a worker does not have the right to work, they cannot deprive them of a right of appeal unless it would have been futile (…).

The Employment Appeal Tribunal (EAT) has held in Okedina v Chikale that even if someone is working in breach of immigration law, that does not automatically mean that their contract of employment is illegal. This is because the immigration rules only apply to the sanctions that employers face if they knowingly breach them when employing someone (…).

Whistle-blowing

In the decision of Timis and anor v Osipov and anor, the Court of Appeal has held that two individual directors, who were responsible for dismissing a senior employee for blowing the whistle, were liable to pay him compensation, in addition to the company itself, under section 47B of the Employment Rights Act which deals with “detriment” against co-workers (...).

In the landmark decision of Timis and anor v Osipov and anor, the Court of Appeal has held that two individual directors were liable for dismissing a senior employee for blowing the whistle, in addition to the company (...)

When blowing the whistle, workers have to ensure that they make a disclosure of “information”. In Kilraine v London Borough of Wandsworth, the Court of Appeal held that “information” could include “allegations” but they, in turn, had to be sufficiently factual to support one or more of the factors listed in section 43B(1) of the Employment Rights Act (ERA) 1996 (…).

Working time and holiday pay

The Court of Justice of the European Union has held in Max-Planck-Gesellschaft.v Shimizu that in relation to EU holiday, unless the employer can show that they gave the worker every opportunity to take the annual leave and the worker deliberately chose not to take it in the year it accrued, they retain their entitlement even if they fail to apply for the leave before the employment relationship comes to an end (...).

It is well established in law that workers are entitled to be paid “normal remuneration” when their holiday pay is being calculated. In Flowers and ors v East of England Ambulance Trust, the Employment Appeal Tribunal (EAT) held that holiday pay should also include voluntary overtime that was sufficiently regular and settled to be taken into account when calculating “normal remuneration” (…).